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(Fey. 24, 1831.
tion than myself. In his attachment to the great doctrines nerated by its patronage.” Yes, sir, and we shall be of the democratic party, he is a fit and proper represen- lampooned and vilified for the course which we now purtative of the State of which he is a native-a State which sue. My colleague read correctly the handwriting on has been distinguished by nothing more strongly than by the wall. What was fact formerly will be fact again. her uniform devotion to the constitution. That star in our But let the storm rage, if it shall be so willed by those political galaxy has never shed “disastrous twilight,”or un- who control the operations of particular presses; I stand dergone eclipse. Sir, I speak not ex cathedra. I have had here the advocate of the constitution, and, if necessary, no syllable of conversation with that gentleman; but, from I am ready to become the victim in its place. my knowledge of his character, and other circumstances, I am not yet done with the Secretary of State. I will I am led to the opinion which I have expressed. “I read you a paragraph from a speech delivered by him on view,” said Mr. Branch, referring to the resolution, “the what was commonly called “the Rules of the Senate," a usurpation which it notices and purports to repel, as a link speech delivered since I have had the honor of a seat on in the chain, threatening the most portentous and cala- this floor. mitous consequences to the liberties of this people." “The same disposition to limit the popular branch was “ Isolated, unconnected with any thing else, yet so plain- forcibly illustrated in the discussions of the foreign interly and palpably conflicting with the letter and spirit of course bill in 1798. It was upon that occasion contended, the constitution, it is truly appalling to the friends of li- and successfully, too, that the House of Representatives berty.” And again, “It is time to re-enact magna charta; had no discretion upon the question of appropriation for it is time to re-assert the principles of the declaration of the expenses of such intercourse with foreign nations as independence.” The mere assertion by the President the President saw fit to establish; that they would be justthat he possessed the power of appointing ministers, and of ly obnoxious to the imputation of gross delinquency if originating a mission, without consulting the Senate, pro- they hesitated to make provision for the salaries of such duced these strong expressions. Magna charta was violated, foreign ministers as the President with the assent of the and the principles of the Government required to be re- Senate should appoint. What would be the feelings of asserted. I might multiply quotations from the same real and unchanged republicans in relation to such doc. speech, all equally impressive, but I will pass to that de trines at this day? Associated with them was the bold livered on the saine question by a gentleman, then a avowal that it belonged to the President alone to decide Senator, row a member from Kentucky in the other on the propriety of the mission; and that all the constituHouse. I deem it necessary to quote but one sentence in tional agency which the Senate could of right have, was order to exhibit his strong convictions on this claim of to pass on the fitness of the individuals selected as minispower set up by Mr. Adains. [Mr. Tyler here reacters. It was pretensions like these, said Mr. Van Bu. from Mr. Johnson's speech.} “I think I might risk the ren, aided by unceasing indications, both in the internal decision of this question upon the hazard of a universal and external movements of the Government, that proand unanimous opinion as to the plain common sense duced a decy and settled conviction in the public mind meaning of the constitution.” To cite passages equally that a design had been conceived to change the Governstrong from the speeches of others, would not be difficult. ment from its simple and republican form to one, if not The opinions then uttered by my colleague are the same monarchical, at least too energetic for the temper of the that he has enforced in this debate. But I will give you American people.” Indeed, sir, the avowal that the Prethe expressions and opinions of a gentleman who standssident alone possessed the power to decide on the promore immediately connected with the proceeding now priety of & mission, and that all our agency consisted in the subject of discussion. I mean the Secretary of State determining on the fitness of the minister to be sent, if --the person immediately charged with the management Hot monarchical, is at least too energetic in its tendency, of our diplomatic relations--one upon whose advice the bold, and somewhat reckless; and yet a mission originated, President' doubtless reposed with confidence. I have and not even the names of the ministers sent into the found no speech of his reported on Mr. Branch's resolu- Senate; and, that, too, notwithstanding a long session of tion, and imagine that he delivered none; but he spoke that body had, in fact, intervened. Why, sir, here is not on the Panama question, properly so called, and subse-only a bold avowal, but the actual execution of that avowal quently on the rules of the Senate. Let us see his speech with a vengeance. Not only no previous consultation on the first question. [Here Mr.T. read from that speech.) with, but no nomination even ever submitted. The Se“ The measure is deemed to be (that of sending ininisters cretary also voted for the resolution of Mr. Branch in the to Panama without previously consulting the Senate) only form in which he could express his opinion. And within the constitutional competency of the Executive;lyet, "ere those shoes were old” with which he followed that we are only consulted to obtain our opinion on its (not "like Niobe, all tears,” but with a heart full of joy expediency, and because it is necessary to come to us for and gladness,) the last administration to its grare, the same an appropriation, without which the measure cannot be doctrine is carried into full practice. What, sir, make carried into effect. Yet, sir, the first blow that was struck war upon an abstraction; cause the thunders to roll and in that great contest which subsequently convulsed the the lightnings to flash, in order to annihilate a mere abcountry, and the first voice that was raised arrest the struction, and yet call upon us to sanction its practical apcurrent of events then setting in, (speaking of the sugges- plication! Will gentlemen recant thus their opinions tion which was made by the first Adams relative to the solemnly recorded? Shall it be said that we can give two mission to Berlin,) were on points, to all substantial pur- readings to the constitution, and that that which is uncon: poses, identical with the present. Is it not a startling, if stitutional in Mr. Adams's time becomes right and proper not an ominous circumstance, that so soon under the pre- under General Jackson? Shall we put off our opinions sent administration we should have presented to us, in with as much facility as we do our gloves? Have we not good such bold relief, cloctrines and principles, which, in the grounds to complain of the Secretary of State, if he adfirst year of that to which I have referred, laid the prin-vised this mission and that be did so, I cannot bring my. ciples of the most bitter and unrelenting feuds? Does self to doubt. Has not the whole Jackson party the analogy stop here? The men who then opposed the complain? Was there any question on which that party mission to Berlin were denounced as oppositionists--as a stool so deeply committed as on this? None, sir; not one, faction who sought the gratification of their personal views Even if there existed an aptness in the cases referred at the expense of the public good. They were lampoon: to by the Senator from Louisiana as furnishing precedents ed and vilified by all the presses supporting and supported to justify this mission, howsoever they might influence by the Government, and a host of malicious parasites ge- the President, they can furnish no excuse for the Secre
FEB. 24, 1831.]
tary, his constitutional adviser. Those cases were all the circumstance of these persons having been engaged paraded in the discussion on the Panama question; they on a secret mission converts them into mere secret agents were commented on, and their force overthrown. Can of the President, I beg to know what becomes of us an actor in that proceeding now repose for his justifica- when we go into secret session. Do we cease to be tion on precedents which had been declared of no force public agents while sitting with closed doors? True, we or effect? Let it not be said that the President is alone sit not then in public, but in secret; but what new creliable to be questioned. The constitution has placed dentials are made out for us? Away, then, with these around him advisers in the several departments, and for Aimsy apologies. Let us meet this question boldly and the counsel they may give him they are answerable, not fearlessly. Let us tell the President that he has erred. only to him, but to public opinion.
Let us be true to ourselves, to our constituents, but, But, Mr. President, we are told by the Senator from above all, to the constitution. What is the language of Illinois, (Mr. Kane,] that these persons were not public that high instrument? “He shall nominate, and, by and ministers. Now, sir, there is an old saying, and a very with the advice and consent of the Senate, shall appoint, wise one-"save us from our friends, and we will take ambassadors, and other public ministers and consuls, care of our enemies;” and never was it more applicable judges of the Supreme Court, and all other officers of than on the present occasion. If an attempt is made to the United States, whose appointments are not herein excuse a thing, and the excuse prove insufficient, better provided for and established by law.” The obligation by a hundred times had it never been urged.' Why, to nominate is one thing, that to appoint another. An sir
, if these were not public agents, what in the name of appointment cannot precede a nomination, nor can it take common sense were they? Formerly, and no doubt it is place without the advice and consent of the Senate. Did still the case, kings and potentates had their private am- the President nominate these commissioners, these ambassadors. They are deputed to transact some matter bassadors, these official agents? Gentlemen can take appertaining solely to the King, their master. They may their choice of terms. No. Did he appoint them? Yes, be charged, like an Earl of Suffolk in former times, to no one doubts it. Has he appointed them by and with negotiate a treaty of marriage; or, like somebody else, the advice and consent of the Senate? No: for no nomito present congratulations on the birth of an heir appa- nation ever was submitted to the Senate. What, then, is rent
, or to purchase a crown jewel. These would, indeed, the inference! It is plain and palpable; I need not exbe private agents, such as the President, not as President, pressit. Sir, is not this enough to give us pause? Lanbut as an individual, may employ. But who would think guage cannot be clearer, sense more unincumbered, or for a moment of quartering such agents on the treasury? injunction more obvious. These arguments apply as Sir, it is the employment which gives character to the well to the ministers sent by Mr. Adams, so far as their agent. If sent on a high embassy, involving the com- true character has been made known, as to those sent by mercial interests of the country, whether his character President Jackson. No one can sanction tbe one and be publicly known or not, is wholly immaterial; and the disapprove the other, or disapprove the one and sanction very quotation from Martens, which he has relied on, is the other. By a subsequent clause in the constitution, sufficient to satisfy the Senator of this: for, says that authority is given to the President to fill vacancies occurwriter, “secret embassies are of many sorts.
ring during the recess. No man can mistake the true If the court to which he is sent (speaking of one em- meaning of that clause--vacancies which occur between ployed on a secret embassy) "be informed of the session and session of Congress should be filled by the object of his mission, he ought to be granted all the invio- President; but he is bound to nominate to the Senate lability due to him as minister.” Did Mr. Rhind make during the session succeeding such appointment; and to known to the Porte his true character? Was he not guard and limit this power, the commission expires with recognised in that character? Did he not exhibit his such session. Any other reading would invest the Presicredentials, enter into a negotiation, and conclude a dent with unlimited and uncontrollable power. Can we treaty of commerce and navigation? Who doubts this? possibly mistake a text so plainly, so clearly expressed? The fact that the treaty is ratified, speaks all that I ask. Uhave read to the Senate the clause in the constitution But, sir, in what a lamentable position is this argument of relating to this subject. I have said that no man could misthe gentleman placed by the President's own avowal, take the meaning. I beg leave to recant that expression. made but a day since in the face of the public? I hold There is one class of men who may construe it differently: in my hand the Intelligencer of this morning, containing statesmen, they call themselves; but no more like statesa message from the President to the House of Repre- men of former times “than I to Hercules."
They be. sentatives, covering a letter from Mr. Rhind on the sub-long not to the earth, nor deal with it justly; they spurn ject of certain fine Arabian stceds presented to him by the ground on which they walk. Following the lights of the Sultan. [Here Mr. T. read a portion of Mr. Rhin:I's a bewildered imagination, they rush into speculations, letter, in which he uses the following language:] “Al- and, in their mad career, trample under foot rights natuthough this was evidently not intended to me (speaking ral and chartered. The constitution presents no barrier of the present) in my official capacity, since the ministers in the way. Its language, however simple and plain, is were aware I could not accept them as such, still the gift construed into an ambiguous text to suit their ruinous dewas one that could not be returned without giving signs. Every thing is too plain and simple for their vast offence.” And, but for his official capacity, said Mr. T., ininds. They go for splendor; and what does not glitter, why should Congress be troubled with the subject at all?is regarded as worthless. May heaven, in its goodsess, The mandate of the constitution interposes with the relieve us from all the tribe. Sir, I take the simple, declaration, that no person holding any office of profit unambiguous language of the constitution as I find it i of trust under the United States shall, without the con- will not inquire what it should be, but what it is, when I sent of Congress, accept of any present, &c. from any come to decide upon it. The wisdom of our illustrious king, prince, or foreign State." The President, then, ancestors framed it; and when I am asked to exchange it acknowledges Mr. Rhind to have been an officer of Go- for the policy of the hour, I answer, nay. No matter by vernment; and, as I am indifferent about names, if gen. what circumstances I may be surrounded—abused, slantlemen choose to unminister Mr. Rliind, if I may coin a dered, vilified, as much as my bitterest enemies may phrase, I care not, so they do not deny that he was an please--this shall be my answer: Every day's experience officer of the Government. The language of the consti- satisfies me, that, amidst all the turmoil and confusion of partution embraces as well the case of an officer, however ties, the first post of safety is, to stand by the constitution; subordinate, as of an envoy extraordinary. But, sir, if the second post of safety is, to stand by the constitution;
(Feb. 24, 1831.
and the last post of safety is, to stand by the constitu- glorious is that example. When he exercised his reto tion.
over certain bills during the last session of Congress, he The Senator from New Jersey (Mr. DICKERSON) cited, had my most unqualified applause. I have seen much as matter of history, the nomination by the elder Adams, in his career to applaud. The patriot who has shed his in 1799, of Mr. Smith, as minister to the Porte; for what blood on the embattled plain in behalf of his country, purpose, I am at a loss to imagine. The appointment was will not hesitate to approve the effort which is made to made, but not accepted. In my conception, it operates save the constitution from the effect of an error into disadvantageously to the recent proceeding:
which he may have fallen. He ratifies no error of ours. When a boy, I learned that the elder Adams was the The two Houses of Congress, no doubt with solemn conadvocate of strong government. He had held up, by victions of both its expediency and constitutionality, pass his writings, the British Government as the most stupen- a bill, which, in his estimation, infringes on the constitudous fabric of human invention; and yet he deemed it tion; with Roman firmness he forbids its becoming a law; his bounden duty to send no minister to Constantinople Shall we rival this example, or shall we be less faithful without previously submitting the nomination to the sen- to the trust confided to us? The different departments ate. Was there any greater necessity for doing so in this of the Government are intended to check each other. instance than in that? The objects were the same. If it In the Legislature each branch has a check upon the be said that secrecy was more necessary now than then, other, and the President on both, while each has a check might not the message have enjoined secrecy? And is on him. We will do our duty, then, as becomes us. there any man here who would have betrayed his trust? It is, however, repeated, that it is now too late to But, sir, are the forms of the constitution to be disregard- object: we should have objected to ratifying the treaty ed, because the Executive may deem it proper to keep I had hoped not to have heard this argument repeated, from the knowledge of the world its schemes of diplo- after the conclusive answer which was given to it by my macy? What is this but to make the Executive superior colleague. When a treaty is submitted to the Senate; to the constitution?
the only question which properly arises is, merely, is it With regard to the precedents relied upon in this de good, or is it bad? If the first, it should be ratified; if bate, I have one answer for all of them; and it is, that, the last, rejected. The President is invested with full even if they were all in point, the constitution would re- power to negotiate all treaties; and when he asks an main unchanged. Shall we consecrate abuse? Shall appropriation to the ministers employed in negotiating we plead precedent to justify error? Is the legislation it, the question then for the first time comes up as to of Congress, or the action of the Executive Department, the legality of their appointment. Here, then, is our above the constitution? Shall the creature claim to con- reason for not having discussed this matter in secret sestrol the creator? Pile precedent upon precedent until sion, apart from all others. But, furthermore, two alteryou make Ossa like a wart, and yet no suflicient justifi- natives were presented, and we had a right to exercise cation is furnished for the Executive. Sir, I am willing a sound discretion in choosing between them. We would to admit that these precedents may be urged, and I care obviously take that which would produce the slightest not how successfully, in excuse of the President. They injury. 'Again, it is said that we have taken to ourselves have misled others, and why not him? But in my opinion the benefit of others' labor, and we ought to pay for it
. he has been misled; and it is my solemn duty to say so. No one denies it. It has never been denied. But I take
My colleague has anticipated the answer to all those it that there is a manifest difference between an applicacases, and it would be idle for me to tread upon the tion made by the Government, and one made by an indi: ground over which he has gone. They have no just ap- vidual. The one addresses itself to our obligations of plication to the question now under discussion. Much duty, the other to our convictions of what may be just stress is laid on the circumstance that treaties have been or equitable. To sanction the first, is to approve the negotiated by the Secretary of State. Now, I do not course which the administration has pursued, and to mean to decide a question not before me, but I can well sacrifice principle. To respond to the supplication of conceive a marked and strong difference between that the individual, is to obey the suggestions of a benevolent case and this. The Secretary of State is an officer known policy. The error of Government we will not sanction, to existing laws. He is nominated to, and appointed by but we will redress to the man the injury which that and with the advice and consent of the Senate. He is error may have produced, but it must be on his private charged with the diplomatic relations of the country. petition or application. The Secretary of State would With ministers near this Government, it is his duty to car- then be heard as a mere witness in behalf of the applicant, ry on correspondence. He is the true constitutional not as an officer of Government making a requisition channel tlırough which the sentiments of the President upon us. I care not, however, for the mere form in are made known to foreign nations; and I can see no which this thing is done, provided the great principle be great impropriety in the President's investing him with saved; and, before I take my seat, I shall move an power to sign a treaty which the Secretary has himself amendment which will save that principle. negotiated, and to exchange its ratificatio:s. But, sir, to Why, then, should we have been goaded into opposimake that case parallel with the present, imagine that tion to the administration by a perseverance in a course the President commissions him as a minister to a foreign which we cannot approve?' why presented to the public country, without any nomination to the Senate; or, sup- in an attitude which we earnestly desire to avoid? Is it a pose he appoints him Secretary of State, without the part of the policy of the times? Heretofore-for we have sanction or authority of the Senate; then a case like that differed from the President but upon one question of under discussion arises; and the answer to both is the importance—we acted then, as we do now, upon high same-the constitution forbids it.
principles. We deemed it then, as the constitutional I have expressed to you candidly my own convictions advisers of the President, our imperious duty to differ upon this subject; many gentlemen will, no doubt, take from him in opinion. The principle involved was intiopposite views from those 1 entertain. If so, I know how mately connected with the freedom of the press; We to tolerate differences of opinion between men. Such deemed it as hazardous to make the press the prominent . Senators will, no doubt, be actuated by as honest inten- subject of Executive favor, as of Executive displeasure. tions as myself. For myself, the path of duty is straight, The influence of money is more irresistible than that of and I shall walk in it. Shall I displease the President by force. In this country there is no danger from the last
; doing so? If I do, I cannot help it. But I claim to but the first is the lever by which free systems are over: follow in the footsteps of his example; and bright and turned. We rested upon the good sense of the public
FEB. 24, 1831.]
for our vindication, and folded our arms in silence. We cations have already been given of a contrary character, thereby gave the most conclusive evidence of our desire and I hail them as a sure augury of success. for the President's success in the administration of the In conclusion, Mr. Tyler offered the following proviso, Government. What was our reward? Were we treated by way of amendment to Mr. Kane's proposition: with ordinary civility? We were declared to be in oppo Provided, always, That nothing in this act contained sition to the administration. Hard names were bestowed shall be construed as sanctioning, or in any way approv. upon us; ahuse copiously poured out on our heads; our ing, the appointment of these persons, by the President motives assailed and misrepresented; our designs repre- alone, during the recess of the Senate, and without their sented as dark and evil. This language has been per- advice and consent, as commissioners to negotiate a treaty sisted in for the last twelve months. Cui bono? For with the Ottoman Porte.” the good of the President, or of the party to which we Mr. BROWN, of North Carolina, next rose, and obbelong? Is this the way to attach high-minded men to served, that, when he had taken his seat that morning, any cause?
Human nature, speaking almost audibly he had entertained but little expectation that he should from the heart of all, answers in the negative. A new have entered into the discussion of the subject then under discovery was made. My colleague was represented as consideration; but, unprepared as he was, the extraordian old federalist, the moment he gave a vote consecrated, nary course which it had taken had induced him to depart as I verily believe it to be, to the purest republicanism. from that determination, and to claim the indulgence of The history of his life, exhibiting him as it did, reared the Senate, succinctly to present his views in opposition in the very arms of democracy, was not sufficient to pro- to the motion which proposed to strike out the appropriatect him. The circumstance of his being an actor in the tion making compensation to the commissioners appointed spirit-stirring crisis of 1798–9; of the part which he bore by the President of the United States to negotiate a treaty in tifat session of Congress which witnessed the retirement of commerce with the Turkish Government. He objected of the elder Adams from the Presidency; of the uniform also to the amendment proposed by the Senator from Virconsistency of his life in adhering to the governmental ginia, (Mr. Tylen,] because its adoption would, in effect, doctrines with which he set out; of the distinguished as he conceived, charge the Executive with a violation of part which he bore in the late arduous struggle; nothing the constitution, by the appointment of commissioners to Was sufficient to protect him from this charge, or shield treat with the Turkish Government without the sanction him from the bitterness of these hostile attacks. For of the Senate--a censure, which he deemed not only unmyself, I had nothing but a conscious integrity to plead in called for, but wholly unmerited: uncalled for, because my behalf, and that availed me as little as the services of the present was not a fit occasion to express it, if at all demy colleague availed him. Our own constituents urged served; unmerited, because, in his opinion, the exercise no complaint; on the contrary, I seriously declare that I of the power by the Executive was in pursuance of the have scarcely seen the man within the broad limits of constitutional authority, which appropriately belonged to Virginia, who did not approve our course. To use the that department of our Government. language of one of her citizens, that "unterrified” com We had, in substance, been told, if the Senate sanctions monwealth can never be operated on by causeless clamor. this proceeding, by voting for the appropriation, without None of these attacks were made from thence, or from protesting against the alleged usurpation, that the dignity any part of the South. Nor did any come from the West. of this body will be impaired, and that it will be surrenFrom whence then did they proceed? They came from dering one of our most important powers to the Executive the North, and in all their violence from one particular branch of the Government. He claimed the right to inState. “Call you this backing of your friends? Is this terpret the provisions of the constitution for himself, and the mode to consolidate a party? It is a modern discovery, could not admit that it had been confided to the exclusive and unknown heretofore to the world. We could not guardianship of any particular members of that body. Nor justify it to ourselves, then, Mr. President, to remain could he permit himself to doubt that all, when in their silent on this new occasion on which we are compelled to opinion the occasion called for it, would unite in repelling differ from the administration. Our opinions and our any attempt, from any quarter, which was in derogation arguments will go to our constituents, and I fear not the of the authority and character of that branch of the Goresult of the verdict they will return.
vernment. This has been called a mere question of power between The honorable Senator from Virginia, (Mr. Tyler,] who the Senate and the President. Sir, it is a question whe- has just addressed the Senate, and whose eloquence is ther the constitution is supreme, and binding upon all. always heard with pleasure and attention, had remarked, But if we were now forming the Government, I would that he represented a State whose stern independence add to the power of the President not even so much as could not be brought to pay homage to power, and the would turn the scales by the hundredth part of a hair. frankness of whose eitizens would not permit them to chaThere is already enough of the spice of monarchy in the racterize acts but by their proper names; and if bis colPresidential office. There lies the true danger to our in- league and himself had called the power which the Prestitutions. It has already become the great magnet of sident of the United States had exerted, by the appointattraction. The struggles to attain it are destined to en- ment of commissioners to negotiate a treaty of commerce list all the worst passions of our nature. It is the true with the Ottoman Porte, a lawless and unconstitutional Pandora's box. Place in the President's hands the key exercise of power, that it was because they had been acto the door of the treasury, by conferring on him the un- customed to speak in the language of frankness and sin. controlled power of appointing to office, and liberty can- cerity. Sir, said Mr. B., I cheerfully subscribe to the
In the language of Lord Chatham, honorable mention which the gentleman has made of the this would be to inflict the irremedicabile vulnus. “Not State of Virginia: her past history is rich in the renown of poppy, or mandragora, or all the drowsy sirups of the her distinguished warriors and statesmen: she has, on all world, could medicine” us « to that sweet peace” which occasions, been ready to assist in vindicating the characWe should thereby lose. No, sir; the glittering diadem ter of the nation from foreign insult, and has warned, with is already studded with jewels
, and ambition evermore a prophetic voice, her sister States against the dangerous urges its yotaries to clutch it. What would it not be if and insidious encroachments of the Federal Government you adorn it with blazing diamonds?
on their rights, which were so well calculated to destroy lf, then, we stand alone, we shall oppose the principle the beauty and harmony of our admirable system of Go. which has now been carried into practice. It would be vernment; but I must be permitted to remark, said Mr. B., a proud distinction; but this will not be our fate. Indi- that I cannot discover any thing in this act of the Presia
not abide among us.
[FEB. 24, 1831.
dent, calculated to alarm the fears of those most devoted that period? He confessed that he attached but little to a rigid construction of the constitution, of which num. weight to precedents, unless they were sanctioned by long ber he professed to be one.
and uninterrupted practice, and were authorized by a fair He would now proceed briefly to examine the transac- construction of the constitution. The practice of appointtion which had been so severely animadverted upon. The ing commissioners of a similar character with those who facts connected with it were briefly these, and had already had been commissioned to negotiate with Turkey, had been ably discussed by the gentleman from Louisiana. commenced with General Washington; he had, in the early When the present administration entered on the discharge part of his administration, appointed commissioners to neof its public duties, it found that the preceding adminis- gotiate a treaty of peace with the Dey of Algiers, withcut tration had appointed confidential agents to ascertain if a a previous nomination to the Senate. Subsequently, Mr. treaty could not be made with the Turkish Government, Jefferson had appointed coinmissioners to treat with the and to effect that object if it could be done. This mission Tripolitan Government; and, in 1808, he commissioned Mr. having failed to accomplish its purpose, and one of the short as minister plenipotentiary to the court of St. Peo commissioners appointed under the late administration tersburg, in the recess of the Senate, which was not to having returned to the United States, the President, anx- fill a vacancy, as the United States had not before been ious to open new and lucrative channels of trade to the represented by a public minister at that court. Much as commercial enterprise of our citizens, üppointed Mr. he revered the memory of Mr. Jefferson, whose great and Rhind and Captain Biddle, in conjunction with Mr. Omey, invaluable services to his country, as a statesman, had not, to effect, if practicable, that which the late administration in his opinion, been surpassed by any of his cotemporahad failed to do. To this it was objected, that it was an ries, yet he did not believe that the Executive power was, assumption of power, in violation of that provision of the by a proper construction of the constitution, competent to constitution which declares that the President “ shall have commission a public minister, without the advice and conpower, by and with the advice and consent of the Senate, sent of the Senate, unless to fill a vacancy which happens to make treaties, provided two-thirds of the Senators pre- in the recess. This instance has been adduced of the ex sent concur; and he shall nominate, and, by and with the ercise of the appointing power by President Jefferson, to advice and consent of the Senate, shall appoint, ambassa- show the great diversity of opinion which had heretofore dors, other public ministers and consuls, judges of the existed among the most eminent patriots and statesinen, Supreme Court, and all other officers of the United States, in relation to its extent, and not that he considered it at all whose appointments are not herein otherwise provided analogous to the present case. It showed that a power for, and which shall be established by law,” &c. He rea- much higher and much more questionable had been ex. dily conceded that the President could not constitution- erted under an administration deservedly eulogized for its ally appoint a “public minister” or “ambassador,” with almost uniform adherence to a limited construction of the out first consulting the Senate, and their concurrence had powers of the General Government. in the appointment, unless to fill up a vacancy which had The two first cases to which he had adverted, showing occurred in the recess of the Senate. But in the appoint- the exercise of the same power in the early administration ment then under consideration, in which the Executive of our country, had occurred, it is true, 'when a state of had appointed inere confidential agents, he thought he war existed between this country and those to whom comcould perceive an obvious distinction. They had been missioners were deputed to treat. The gentleman from appointed for a special, designated purpose, not clothed Virginia (Mr. TaZEWELL) had maintained the proposition with the usual powers of public ministers, unprotected by that the President could rightfully exert this power in a the immunities and privileges which, by the law of nations, state of war, though not in a time of peace, for the reason were extended to that class of ministers contemplated by that the object for which war is carried on is the attainthe constitution. Where, then, was the infringement of ment of peace; and that the President may institute a misthe constitution, which had been so much reprobated? By sion without consulting the Senate to effect that end. Mr. that instrument, the management of our foreign relations B. said he could not yield his assent to this argument; for was peculiarly confided to the Executive Department of if the President was vested with authority to appoint comthe Government. The power of appointing confidential missioners in time of war, it followed as a consequence that agents to confer and treat with foreign Powers in relatior. he could exert the same power in time of peace. When to commerce, was fairly deciucible from this duty imposed public functionaries look to the constitution for a warrant by the constitution on the President. It was unreasonable for the exercise of power, it was an admitted rule of con. to suppose that, when a duty was required of an officer of struction, where a provision of that instrument expressly the Government by the constitution, it withheld from him conferred powers, as in that before quoted by him, which the power to employ the necessary means for its accom- gives to the President the power of appointing ambassaplishment. Nor would its exercise be attended with the dors and other public ministers, with the advice and concalamitous consequences which we had heard so much cle- sent of the senate, “and to fill up all vacancies that may precated. It could not, in any case, unite us, either by happen during the recess of the Senate, by granting coma commercial or political connexion, with foreign nations, missions which shall expire at the end of their next seswithout the previous consent of that body, as the concur- sion,” that resort could not be bad to any other clause rent authority of the Senate in the ratification of treaties to enlarge that power by implication; and the clause exwould always interpose an effectual barrier against acts of pressly conferring the power could alone be resorted to Executive indiscretion, or schemes of ambition. Nor for the purpose of ascertaining the true extent of the auwould the rejection of a treaty by the Senate, thus nego- thority granted. The constitution did not vary with the tiated, have å tendency to embroil us with foreign nations, circumstances of peace or war; it uid not hold different as had been argued; for every Gorernment with whom we language on different occasions. He had been taught to may have diplomatic relations, either is, or is supposed to believe that the principles of that instrument were fixed be, cognizant of the treaty-making power under our Go- and inflexible, and dici not bend to any emergency, how vernment; and a refusal by the Senate to ratify a treaty ever pressing, or any necessity, however high. could not afford any just ground of complaint or hostility Mr. B. said he would now proceed to examine the ana against us.
logy which the gentleman from Virginia (Mr. TAZEWELL Passing from the arguments fairly to be derived from a bad endeavored to trace, and, as he thought, unsuccess proper construction of the constitution, what, he would fully, between the principles avowed in President Adams' asis, had been the usage of almost every administration, as message in relation to the Panama mission, and the casi he believed, from the origin of our Government down to then under discussion. The gentleman who had preceder